A week in family law: Divorce in Ireland, burn-out, video hearings and more

Family Law|February 1st 2019

As I reported here, the new President of the Family Division Sir Andrew McFarlane has published his first ‘View from the President’s Chambers’. For those who don’t know, the ‘View’ was created by the previous President Sir James Munby, and is a regular update on the work of the President, and on news relating to the family justice system generally. In the View Sir Andrew said that his number one priority is the need to address the unprecedented and unsustainable volume of cases in the system caused by the high volume of new children cases over recent years. He said that this, along with a substantial rise in the proportion of litigants in person resulting from the legal aid cuts, has led to huge workload pressure, which is affecting the well‐being of social workers, lawyers, judges and court staff. As a result, he said, “some corners may have to be cut and some time‐limits exceeded”, as “to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn‐out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges.” As I said in my post: “I find it quite remarkable that the man at the very top of the family justice system is advocating the cutting of corners. Surely, such a situation would have been unthinkable only a few short years ago?”

Moving on, as I also reported the Association of Lawyers for Children has published a report looking at the views and experiences of advocates on practices in 61 settlement conferences, which have been piloted by the Ministry of Justice since 2017. As I explained, settlement conferences are intended to help parties in children cases to resolve matters by agreement, with the assistance of the judge. However, the report’s findings do not support a roll out of the settlement conference procedure in its current form. The reasons for this included variations in approach by judges and courts, concerns as to whether the procedure was fair, pressure on lay parties to agree to a suggested order, and the power imbalance between lay parties and the judge, by virtue of the latter’s status and position. Further, many of the advocates felt that a similar result could have been obtained within the existing court procedures, if only more time was allowed.

Another post I wrote this week related to the recent Court IT meltdown. Hot on the heels of that, we received news that the Family Courts are to test video hearings. The news came as the judiciary published the outcomes of its Judicial Ways of Working consultation, which received responses from or on behalf of 10,000 judges, panel members and magistrates, setting out their views on proposals to modernise and reform the courts. The President of the Family Division summarised the position in relation to the Family Court, saying that whilst some judges expressed concerns about the appropriateness of fully video hearings (‘FVH’), some felt that they could be used for uncontested cases. Accordingly, he said, a test of FVH for first directions applications in financial remedy cases had been approved, “given that they are, in the main, principally dedicated to case management using pre-prepared documents”. Sir Andrew made clear, however, that currently there was no specific proposal to expand FVH in the family jurisdiction beyond this test, adding: “Specifically, and subject to the evaluation of the test, it is felt that FVH will not normally be appropriate for contested cases involving the giving of oral evidence, multi-party cases, cases concerning litigants in person, and/or cases concerning children.” Whilst that is reassuring, another piece of news that appeared after I wrote my post is not: internal documents have apparently revealed that the Ministry of Justice knew its computer systems were “obsolete” and “out of support” long before the network went into meltdown. The reason? Long-term underfunding, of course. The prospect of video hearings on obsolete equipment does not inspire confidence…

And finally, it seems that the idea of divorce reform is not limited to this country. On Tuesday the Irish Government approved the holding of a referendum in May to amend the Constitutional provisions there on divorce. At present, the Irish Constitution only permits divorce when spouses have lived apart for four of the previous five years. The referendum will ask the Irish people to approve an amendment to the Constitution to remove that minimum living apart period. If the referendum is passed, the Irish Government will bring forward a Bill to amend the law to reduce the minimum period to two years during the previous three years. Making the announcement Irish Minister for Justice Charles Flanagan said: “Ireland has one of the lowest divorce rates in Europe and that is to be welcomed.  Sadly, however, some marriages do break down irreconcilably, causing immense sadness and stress for all concerned. The Government wishes to ensure that the process for obtaining a divorce is fair, dignified and humane and allows both parties to move forward with their lives within a reasonable timeframe.” Sounds like a very sensible step in the right direction – let us hope the Irish people agree.

Have a good weekend.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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